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HCAL 2929/2018
[2020] HKCFI 2877
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2929 of 2018
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Darsini |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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Director of Immigration |
Putative
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge P. Li:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Background
1. The applicant was born on 9 April 1992 in Banyumas, Central Java, Indonesia. Her parents and siblings were in Indonesia. She had education for 9 years. She was a domestic worker in Singapore (2013-2015) and Hong Kong (2016). She was single.
2. She came to Hong Kong in July 2016 as a domestic helper. She terminated the contract after a week and stayed with her boyfriend. She overstayed since 14 August 2016 [1]. She surrendered to the Immigration Department in February 2017 and was granted recognizance. She was convicted of overstaying in June 2017. She was sentenced to imprisonment for 16 days suspended for 12 months. She had lost contact with her family since.
3. In 2013, while she worked in Singapore, she gave 7 million rupiah to her father to repay a bank loan. Her father had borrowed 15 million rupiah[2] from a bank and the family house was used as a collateral. In October 2015, she returned to Indonesia and took up a part-time job. Her father kept on asking her for money to repay his debts. At times, her father slapped her, burnt her with cigarette butts and hit her with objects. Her lower lip was once seriously injured and needed suturing. She dared not report to the police. She did not want to further provoke her father.
4. In early 2016, she went to Jakarta to have 2 months’ training before coming to Hong Kong as a domestic helper. During that time, her uncle told her that the family house was forfeited by the bank.
5. She finally came to Hong Kong in July 2016. However, she terminated the contract in about a week as she wanted to stay with her boyfriend.
6. She was in fear that her father would harm or kill her if she returned to Indonesia as she failed to give him money.
7. She did not have any means to relocate in Indonesia. She did not know other places for relocation. She had no relatives elsewhere in Indonesia. Her father might be able to locate her throughout Indonesia.
The Decision of the Director
8. The Director found that the risk of harm was low for the following reasons:
(a) It was not convincing that her father could locate her throughout Indonesia. He would not have the resources being a coolie in Indonesia. In fact, she was not harmed while undergoing training in Jakarta before coming to Hong Kong.
(b) Her father did not inflict serious harm on her despite plenty of chances. This indicated that he had no intention to kill her.
(c) She had no contact with her family in Indonesia since mid-2016.
(d) She made no immediate attempt to leave Indonesia despite the alleged assaults by her father around October 2015. On the contrary, she received training in Jakarta for two months until July 2016.
9. The Director had considered various COI. While there was corruption and infringement of human rights in Indonesia, there were practical measures to improve police effectiveness. There were organizations which assist in the protection of women.
10. This dispute was a domestic matter. There was no state involvement or encouragement. She was able to leave Indonesia without any problem. She chose not to report to the police. There was no evidence of acquiescence. The Director did not accept that there was insufficient state protection.
11. The law in Indonesia allowed relocation. It was a vast country with large population. She might move to other city like Jakarta, Surabaya or Bali. Her father would not be able to locate her. The Director concluded that it was not unduly harsh for the applicant to relocate.
12. In relation to BOR 3, the Director concluded that there was no ill-treatment amounting to ‘minimum level of severity’. There was no real and personal risk of ill-treatment. The claim under BOR 3 failed.
13. In relation to BOR 2, there was no evidence of any engagement of death penalty or genocide. There was no risk of arbitrary deprivation of life. This claim failed.
14. In relation to persecution risk, the fear of the applicant did not arise from any Convention reasons. It was not because of race, religion or political affiliation. It was a domestic dispute. Internal relocation was viable. This claim failed.
15. For the torture claim, the Director concluded that there was no severe pain and suffering within the definition of torture under s 37U of the Immigration Ordinance. There was no public official involved, no evidence of acquiescence or instigation. There was reasonable state protection. This claim failed.
The Decision of TCAB
16. The applicant gave evidence in the hearing fixed on 7 August 2018. The adjudicator rejected the claims on 7 December 2018.
17. The adjudicator made the following findings:
(a) The applicant did not file her claim shortly after she came to Hong Kong in 2016. There was no reason why she did not make enquiries. The adjudicator took this as one of the factors affecting the credibility of the applicant.[3]
(b) The applicant was evasive in answering even simple questions. Her evidence lacked particulars and consisted mainly of bare assertions.
(c) Initially, the reason for not reporting to the police was not to provoke her father. However, she changed it to no money to bribe the police during the hearing.
(d) The applicant could not explain why her father did not demand money from others siblings. She could not explain what resources her father had in locating her all over Indonesia.
(e) There was no satisfactory explanation why she lodged the claim nearly a year after the termination of her contract. She gave contradicting versions.[4]
(f) The applicant admitted that she filed the claim as the last resort as the relationship with her boyfriend had ended.
18. The adjudicator found that the applicant did not tell the truth. The adjudicator did not accept there was any threat from her father. The level of harm was low. Her father did not exhibit real intention to harm or kill her. Her perceived future risk was pure speculation.[5]
19. The applicant was young. She had received 9 years’ education. She could relocate in another city in Indonesia which was large. It would not be difficult for her to settle elsewhere. It would not be easy for her father to locate her.
20. There was no indication that the state was involved or had encouraged her father in those assaults. Had there been any genuine need, the state would protect the applicant.
21. For the torture risk under s 37U, the adjudicator found that there was no risk of severe pain and suffering to the applicant as defined in the section. There was reasonable state protection. There was no state involvement. This claim failed.
22. For persecution risk, there was no risk that the applicant would be persecuted for any Convention reasons. This ground failed.
23. For BOR 2, there was no evidence of arbitrary deprivation of life. This ground failed.
24. For BOR 3, the evidence did not amount to ill-treatment of ‘minimum level of severity’. It was not unreasonable for internal relocation. There was no genuine and substantial risk of ill-treatment. This ground failed.
Judicial Review
25. The applicant applied for leave to judicial review the decisions of the Director and TCAB on 20 December 2018.
26. In her affirmation, she repeated that her father was in debt with the bank. He would kill her if she returned to Indonesia.
27. In my view, there is no error of law and procedure. Given the evidence submitted by the applicant, I find the decisions reasonable.
Conclusion
28. In my judgment, this case is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.
Dated the 12th day of November 2020.
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(Mike Mak) |
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for Registrar, High Court |
Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 12 November 2020
Darsini
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 12 November 2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10927/18/3/379/I1208
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 285/18 (formerly RBCZ 11795/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] She was granted 2 weeks to find a new contract.
[2] About HK$9,000.
[3] Section 37ZD of the Immigration Ordinance.
[4] Paragraph 31(d) of the decision of the TCAB.
[5] Paragraphs 38, 42-43 of the decision of the TCAB.
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